Artemiou v City of New York

Annotate this Case
[*1] Artemiou v City of New York 2022 NY Slip Op 22137 Decided on May 2, 2022 Supreme Court, New York County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 2, 2022
Supreme Court, New York County

Linda Artemiou, ESTATE OF PETER C. ARTEMIOU, DECEASED, Plaintiff,

against

City of New York, NEW YORK CITY FIRE DEPARTMENT, NEW YORK CITY FIRE DEPARTMENT BUREAU OF EMERGENCY MEDICAL SERVICES, NEW YORK CITY FIRE DEPARTMENT EMS, NEW YORK CITY EMERGENCY MEDICAL SERVICES SYSTEM, NEW YORK-PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, NEW YORK-PRESBYTERIAN HOSPITAL EMERGENCY MEDICAL SERVICES, NEW YORK-PRESBYTERIAN EMS, JOHN DOE, JANE DOE, Defendant.



Index No. 805202/2015



Counsel for Plaintiff
Linda Artemiou, as the Administratrix of the Estate of Peter C. Artemiou, deceased
CaraMia Hart, Esq.
Finz & Finz, P.C.
410 East Jericho Turnpike
Mineola, New York 11501
(516) 433-3000
chartfinzfirm.com Counsel for Defendants
City of New York, New York City Fire Department, New York City Fire Department Bureau of Emergency Medical Services, New York City Fire Department EMS, New York City Emergency Medical Services System
Angela R. Cruz, Esq.
Corporation Counsel
The City of New York 100 Church Street
New York, NY 10007
(212) 356-1000
acruz@law.nyc.gov
Judith N. McMahon, J.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 188, 189, 190, 191, 192, 198, 199, 200, 201 were read on this motion to/for JUDGMENT - SUMMARY.



The following e-filed documents, listed by NYSCEF document number (Motion 005) 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 193, 194, 195, 196, 197, 202, 203 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, the motion for summary judgment pursuant to CPLR 3212 of the defendant, New York and Presbyterian Hospital (s/h/a New York-Presbyterian Hospital/Weill Cornell Medical Center, also s/h/a New York-Presbyterian EMS, also s/h/a New York-Presbyterian Hospital Emergency Medical Services; hereinafter "NYPH") (Motion Seq. No. 004) is granted to the extent that (1) plaintiff's third cause of action for lack of informed consent is severed and dismissed; (2) plaintiff's fourth cause of action for negligent hiring is severed and dismissed; (3) plaintiff's claim for recovery under the doctrine of res ipsa loquitur is dismissed, and (4) plaintiff's claim for recovery for medical malpractice and wrongful death relating to decedent's care and treatment while an in-patient at NYPH from February 11, 2014 to March 10, 2014 is dismissed. The balance of NYPH's motion is denied. The motion to dismiss the complaint pursuant to CPLR 3211 of the defendant, City of New York (s/h/a New York City Fire Department, New York City Fire Department Bureau of Emergency Medical Services, New York City Fire Department EMS, New York City Emergency Services System; hereinafter the "City") (Motion Seq. No. 005) is granted, and the complaint is severed and dismissed as against the City.

The only remaining claims in this case are for emergency care and treatment rendered to decedent, Peter C. Artemiou, between 8:31 a.m. and 9:36 a.m. on February 11, 2014 by NYPH paramedics Michael Kremenizer and Scott Strong.

This matter arises out of the alleged medical malpractice resulting in the wrongful death of 52-year-old Peter Artemiou who, according to his co-workers, suffered a "seizure"[FN1] at his midtown Manhattan office on February 11, 2014. Paramedics Michael Kremenizer and Scott Strong, both employed by NYPH, responded to the 911 call. It is undisputed that decedent became asystole (i.e., "flatlined") within fifteen seconds of paramedic Kremenizer injecting him with the sedative, Versed, 10 mg. of which were authorized over the phone by Dr. Leila [*2]Schneitzer, the physician employed by the City's Telemetry Unit of the FDNY. Resuscitation efforts undertaken by the paramedics include use of a bag valve mask, CPR, intubation, placement of an IV, and administration of vasopressors and epinephrine. Decedent was transported to NYPH but was unable to recover full consciousness or the ability to breathe outside of mechanical support during his 29-day stay. Mr. Artemiou died on March 10, 2014, leaving behind his wife, the plaintiff Linda U. Artemiou, and the couple's three teen-age children.

The parties' dispute in this case centers on the cause of decedent's cardiac arrest. Plaintiff maintains, generally, that a deprivation of oxygen [FN2] caused by defendants' cumulative acts of negligence (i.e., improperly restraining decedent by "sitting" on him and/or trapping and compressing his diaphragm, failing to establish and secure decedent's airway, failing to ensure that decedent's tongue was not blocking his throat, and authorizing and injecting decedent with a known respiratory depressant without first ascertaining his oxygen level, etc.) led to cardiac arrest. Defendants NYPH and the City insist that decedent's heart attack was the result of respiratory and metabolic acidosis brought on by the increased lactic acid generated from severe muscle contractions during the seizure(s).[FN3]

RELEVANT FACTS

On February 11, 2014, at 8:29:48 a.m. someone, likely one of decedent's co-workers, called 911 requesting assistance for Mr. Artemiou who appeared to be having a seizure (see Computer Aided Dispatch; NYSCEF Doc. No. 175). According to the Patient Call Report [FN4] ("PCR"; see NYSCEF Doc. No. 155), at 8:31 a.m. a NYPH's emergency medical services life support unit, staffed by Kreminizer and Strong, was dispatched to decedent's office. The ambulance arrived at 8:36 a.m., and the paramedics encountered decedent at 8:38 a.m.

No paramedic events are recorded for the eleven minutes between 8:38 a.m. and 8:49 a.m. (see PCR; NYSCEF Doc. No. 155).

Upon his 8:38 a.m. arrival to the sixth floor, Kremenizer noted that decedent appeared to be "a big guy walking who was not making eye contact with a very unstable gait falling like a log to the floor, and immediately rolling over and trying to get up again" (see NYSCEF Doc. No. 176, pp. 114-115). Kremenizer "grabbed the back of [decedent's] pants by the belt and pushed him against the wall and just held him there ." (id., pp. 125, 464) so that he would not fall and injure himself. When decedent fell to the ground again, Kremenizer testified that he "ended up trapping him between my legs, as I'm, standing, as a tripod above him. Not giving him the option to turn around and actually use his hand he wasn't able to turn. He was kind of trapped between my legs, as he was laying on his side. [I was] kind of restricting his side-to-side movement" (id., p. 77). While "holding [decedent] between my legs [Strong] was drawing blood, and I was calling telemetry at the same time through my phone to get orders for sedation" (id., p. 84).

Paramedic Strong testified that when he arrived at 8:38 a.m. the decedent was throwing [*3]himself to the ground from a standing position (see NYSCEF Doc. No. 177, pp. 37, 177) and "not making eye contact" (id.). Strong denied being present in the room for any physical restraint of decedent or for Kremenizer's call to telemetry.

Co-worker Gregory Micchiche testified that immediately upon their arrival, the paramedics cleared the room of all persons (see NYSCEF Doc. No. 181, p. 59). John MacDonald, another of decedent's colleagues, recalled seeing one of the paramedics inject decedent's "left arm and shoulder area" just before clearing the room. MacDonald testified that he took particular note of this because the shot was injected through decedent's shirt (see NYSCEF Doc. No. 165, pp. 54-56).

At 8:49 a.m., Kremenizer telephoned the NYC Telemetry Unit, stating that he was "fighting a patient right now" (see CD Recording of Telemetry Call; NYSCEF Doc. No. 189). The call was transferred to Dr. Schneitzer, a board-certified emergency physician, for her authorization to give decedent Versed. The call lasted 1 minute and 43 seconds, with Kremenizer informing Dr. Schneitzer that he has "a 52-year-old male in an office building, he is about 6'2" 350 pounds and extremely, extremely violent and might hurt himself or other people so I need to sedate him we are sitting on top of him, otherwise he will hurt himself" (see NYSCEF Doc. No. 189). Dr. Schneitzer asked Kremenizer if "anyone knew anything about [decedent] medically" and if he "could get close to [decedent]." After stating that he could not even get close enough to obtain a finger-stick, Kremenizer repeated three times that decedent was "6'2" tall, 350 pounds and very very violent." Dr. Schneitzer authorized the use of 10 mg. Versed intramuscularly, directed Kremenizer to read back the order, and wished him luck (see NYSCEF Doc. No. 189). The call ended at 8:51:31 a.m. but contrarily, the PCR reflects that Kremenizer injected Versed at 8:49 a.m.

Decedent became unresponsive ten to fifteen seconds after the injection (see NYSCEF Doc. No. 176, p. 85) with Kremenizer reporting that decedent's relatively fast breathing "stopped on a dime" (id., p. 282). After determining that decedent did not have a pulse, Kremenizer and Strong (1) applied a bag valve mask at 8:50 a.m.; (2) commenced CPR at 8:51 a.m.; (3) established an airway at 8:53 a.m. and (4) successfully intubated decedent at 8:54 a.m. Additionally, (5) an IV was placed at 8:55 a.m.; (6) vasopressin was administered at 8:56 a.m.; (7) epinephrine was given at 8:58 a.m. and again at 9:03 a.m. and (8) EKG leads were placed at 9:02 a.m. confirming that decedent was asystole. No cardiac activity was exhibited from 9:02 a.m. to 9:10 a.m., and resuscitation took approximately 20 minutes. Another EKG was performed at 9:13 a.m. which confirmed that decedent had experienced an ST-Elevated Myocardial Infarction. The ambulance left the scene at 9:32 a.m. and arrived at NYPH at 9:36 a.m.



DEFENDANT NYPH'S MOTION FOR SUMMARY JUDGMENT

In support of its motion for summary judgment, NYPH argues that its paramedics did not depart from accepted standards of care and that any alleged acts or omissions on their part were not a proximate cause of the decedent's injuries and death. In support, NYPH attaches the December 17, 2021 expert affirmation of Dr. Thomas G. Kwiatkowski (see NYSCEF Doc. No. 160), who is board certified in emergency medicine, internal medicine, and in the subspecialty of emergency medical services. In Dr. Kwiatkowski's opinion, "decedent experienced a cardiac arrest because he developed metabolic and respiratory acidosis as a result of his seizure and [*4]postictal state that he experienced before the paramedics arrived at his office." The doctor explains that "a prolonged seizure causes muscles to strongly contract, which generates lactic acid faster than it can be cleared, causing metabolic acidosis the decedent also experienced respiratory acidosis secondary to his impaired breathing during the seizure; the decedent's end tidal CO2 level when he was intubated was 75 (normal being 40), signifying a very profound respiratory acidosis [and] the decedent's metabolic acidosis in conjunction with the respiratory acidosis caused cardiac arrest" (see NYSCEF Doc. No. 160, para. 16).

Dr. Kwiatkowski disputes the claims set forth in plaintiff's bill of particulars, opining that (1) the paramedics did not fail to treat decedent's seizure(s), because when they arrived at the scene there was no evidence to suggest he was experiencing a seizure, since decedent did not exhibit convulsions, tonic/clonic movements, muscle twitches, sudden involuntary shakes or spasms, or any other type of seizure activity; (2) the paramedics did not depart from the standard of care by using Versed, because 10 mg is an appropriate dose to someone weighing 350 pounds and, when given intramuscularly, its absorption is delayed fifteen minutes and could not have triggered decedent's immediate asystole reaction; (3) the paramedics did not fail to diagnose and treat cardiac arrest. Rather, they immediately recognized asystole and promptly treated and resuscitated decedent within twenty minutes, all within the standard of care; (4) the paramedics did not fail to diagnose or treat hypoxia or fail to manage decedent's airway, since they successfully intubated him on the first attempt immediately after beginning CPR, as evidenced by the decreased end tidal CO2 from 75 to 46 by the time he arrived at the hospital. In Dr. Kwiatkowski's opinion, "while the paramedics ran the code 'by the book,' the 18 minutes it took to revive decedent would have had a profound impact on [his] cerebral function, which was not attributable to how they managed the decedent's airway"[FN5] (id., para. 20); (5) the paramedics did not depart from accepted standards of care in restraining decedent, since it was understood by Dr. Schneitzer that Kremenizer's description of "sitting on" decedent was a figure of speech, and even if the paramedics had "physically and literally sat on decedent," Kremenizer exercised appropriate judgment in this regard, there being "no evidence to suggest that sitting on the decedent caused injury" (id., para 24); (6) there is no evidence that the paramedics departed from the standard of care by failing to have all necessary medical equipment; (7) decedent's informed consent was not required since the defendants rendered treatment in an emergency setting (see New York Public Health Law §2805-d, which limits the requirements of informed consent to those cases involving a non-emergency treatment, procedure or surgery), and (8) plaintiff has failed to set forth a specific allegation against NYPH as to care and treatment of decedent from February 11, 2014 to March 10, 2014.

In opposition to the motion plaintiff submits, inter alia, the redacted expert affidavits of a certified paramedic (see NYSCEF Doc. No. 190), a critical care physician (see NYSCEF Doc. No. 195) and an internist with experience in the field of emergency medicine (see NYSCEF Doc. No. 196). These experts concur that the paramedics and Dr. Schneitzer failed to recognize decedent's postictal state (i.e., the state immediately following a seizure), which commonly involves medical risks including an impaired ability to oxygenate.

Plaintiff argues that NYPH failed to make a prima facie showing of entitlement to summary judgment inasmuch as its expert failed to explain the standard of care, failed to address the essential time period from 8:38 a.m. to 8:49 a.m., failed to discuss whether decedent was appropriately treated in the immediate aftermath of his seizure, and failed to comment on the actions the paramedics should have taken to prevent hypoxia and cardiac arrest in those eleven minutes after arrival.

Alternatively, plaintiff maintains that triable issues of fact exist as to whether the paramedics departed from the standard of care and whether their acts or omissions were a proximate cause of decedent's injuries and death (e.g., whether Versed was injected before Kremenizer received Dr. Schneitzer's authorization, as witnessed by John MacDonald, whether the words "sitting on top of" decedent was a literal or figurative expression), requiring a jury determination.

Plaintiff's expert paramedic opines that Kremenizer and Strong departed from accepted standards of paramedic care in failing to: (1) "properly treat and in fact exacerbate [decedent's] readily evident breathing problems" which should have been immediately considered based upon the call to 911 reporting a "seizure" (see NYSCEF Doc. Nos. 175, 155); (2) properly restrain decedent while in the postictal state; (3) perform a "modified jaw thrust" to ensure that the tongue is not blocking the back of the throat and (4) contacting the New York City Police Department if decedent was so violent that they could not get close enough to attend to his airway. Plaintiff's expert concludes, "based upon decades of experience, [that] it defies logic that [decedent] would have remained so violent that the paramedics could not secure his airway, while within about 30 seconds or so, he became so hypoxic (or, as defendants now allege, suffered from such profound acidosis) that he flatlined almost immediately thereafter" (see NYSCEF Doc. No. 190, para 55).

Plaintiff's critical care expert asserts that decedent became hypoxic only after the arrival of the paramedics. He agrees that the paramedics departed from the accepted standard of care by (1) failing to insert a nasal or oral airway; (2) failing to monitor and/or detect a partial or complete airway obstruction which may have been treated with a jaw thrust; (3) failing to ascertain a tongue obstruction, and (4) compressing decedent's lungs while restraining his movement. This expert specifically disagrees with Dr. Kwiatkowski in two areas, opining that metabolic and respiratory acidosis could not have caused the heart attack because by the time paramedics arrived decedent was "extremely active" and allegedly "violent" to such an extent that "an individual capable of this type of active movement and activity was not yet suffering from hypoxia and would not have had the degree of acidosis necessary to result in respiratory arrest, cardiac arrest and the lack of oxygen to his brain that was later found on MRI" (see NYSCEF Doc. No. 195, para 47). Secondly, plaintiff's expert explains that Dr. Kwiatkowski's reliance on the end-tidal CO2 reading is misplaced, since "the end-tidal CO2 level of 75, if accurately documented, could only have been measured after the end of cardiac arrest and taken after the return of spontaneous circulation. At that point it would be expected that the end tidal CO2 would rise transiently to 75 due to the return of accumulated CO2 from the tissues to the lungs" (id., para 49).

Plaintiff's emergency medicine expert focuses on the departures made by Dr. Schneitzer, which are expanded upon below, but points to factual discrepancies throughout the record including Kremenizer's documentation of injecting Versed at 8:49 a.m. when the telephone call to Dr. Schneitzer was not even completed until 8:51 a.m. (see NYSCEF Doc. No. 175), as a [*5]reason to deny summary judgment.



THE CITY'S MOTION FOR DISMISSAL UNDER CPLR 3211 AND 3212

The City seeks dismissal of the complaint against the non-suable entities, New York City Fire Department, New York City Fire Department Bureau of Emergency Medical Services, New York City Fire Department EMS and New York City Emergency Medical Service System, pursuant to the New York City Charter §396.

That branch of the motion is granted, and the caption is amended as hereinafter set forth.

The City seeks dismissal of the complaint pursuant to CPLR 3211 on the ground that Dr. Schneitzer's conduct is immune from liability because, as a member of the City's emergency response team, she performed a governmental rather than proprietary function and further, that plaintiff has not pled or alleged the existence of a special duty between the doctor and the decedent in her Notice of Claim, Verified Complaint, or Bills of Particulars sufficient to expose the City to liability (see Cuffy v. New York, 69 NY2d 255). The City argues in the alternative that it is immune from liability for any discretionary decisions made by Dr. Schneitzer, whose role was to instruct paramedics over the telephone during emergencies.[FN6]

Finally, the City seeks summary judgment pursuant to CPLR 3212, arguing that Dr. Schneitzer did not depart from the standard of care and that her actions were not a proximate cause of decedent's heart attack. In this regard, the City relies upon the expert affidavit of Dr. Kwiatkowski, who maintains that an injection of 10 mg. of Versed was appropriate under the circumstances and who opines that Dr. Schneitzer understood that "sitting on a patient" "was not a literal description of events" (see NYSCEF Doc. No. 160, para 23).

Finally, the City seeks dismissal of the causes of action for lack of informed consent and negligent hiring.

In opposition, plaintiff maintains that the doctor's conduct constitutes a proprietary rather than a governmental function consistent with Applewhite v. Accuhealth, Inc., 21 NY3d 420, 428 [2012] and that even if Dr. Schneitzer was performing a governmental function, questions of fact surround whether she undertook a special duty relative to decedent under these facts.

Plaintiff's emergency medicine expert sets forth that it was "incumbent for the doctor ordering the use of Versed, to ensure that the risks to a patient's breathing would be accounted for [and] the appropriate standard of practice would be to inquire as to what steps had been taken to ensure [decedent's] airway was patent and to direct insertion of an oral or nasal airway to protect it, if it had not been done already, as well as administration of oxygen" (see NYSCEF Doc. No. 196, para 47). The expert explains that Dr. Schneitzer deviated from generally accepted standards of medical care and treatment as well as emergency care and treatment in, among other things: (1) "ordering a respiratory depressant to an obese patient with altered mental status and most likely in the postictal state, without checking the patient's oxygen levels and ensuring the patient's airway was open and appropriately monitored" and (2) failing to "seek any clarification whatsoever as to whether Kremenizer was actually 'sitting' upon Mr. Artemiou failing to [*6]inquire into [decedent's] airway status breathing status whether [he] 'was restrained in a prone, lateral or supine position' and failing to give direction as to how to properly handle the postictal state" (id., paras 4-5, 32).



APPLICABLE LAW

The standards for summary judgment are well settled. The proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; [internal citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]), and the facts must be viewed in the light most favorable to the nonmoving party (see Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v. J.D. Duggan, Inc., 180 AD2d 579, 580 [1st Dept. 1992]).

Once the movant has met his or her burden on the motion, the nonmoving party must establish the existence of a material issue of fact (see Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; [internal citations omitted]). It has been held that merely "pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment" (Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576 [1st Dept. 2016]).

"The drastic remedy of summary judgment, which deprives a party of his day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (DeParis v. Women's Nat. Republican Club, Inc., 148 AD3d 401 [1st Dept. 2017]; [internal citations omitted]). "It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]).

To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury. A medical provider moving for summary judgment, therefore, must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Frye v. Montefiore Med. Ctr., 70 AD3d 15 [1st Dept. 2009]; [internal citations omitted]), or by establishing that the plaintiff was not injured by such treatment (see, generally, Stukas v. Streiter, 83 AD3d 18 [2d Dept. 2011]).

To satisfy the burden on the motion, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v. Noble, 73 AD3d 204, 206 [1st Dept. 2010]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and the opinion should specify "in what way" the plaintiff's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v. Lawrence Hospital, 69 AD3d 403, 404 [1st Dept. 2010]). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie [*7]showing by the defendant physician" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]), but only as to those elements on which the defendant met the burden (see Gillespie v. New York Hosp. Queens, 96 AD3d 901 [2d Dept. 2012]). Accordingly, a plaintiff must produce expert testimony regarding the specific acts of malpractice, and not just testimony that alleges "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence" (Alvarez v. Prospect Hosp., 68 NY2d at 325). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to defeat summary judgment (Frye v. Montefiore Med. Ctr., 70 AD3d 15, 24). Where the expert's "ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment" (Diaz v. New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Finally, where the parties' conflicting expert opinions are adequately supported by the record, summary judgment must be denied (Frye v. Montefiore Med. Ctr., 70 AD3d 15, 24; Cruz v. St. Barnabas Hospital, 50 AD3d 382 [1st Dept. 2008]).

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. A governmental entity performs a purely proprietary role when its 'activities essentially substitute for or supplement traditional private enterprises.' In contrast, a municipality will be deemed to have been engaged in a governmental function 'when its acts are undertaken for the protection and safety of the public pursuant to the general police powers'" (Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425-426 [2013]; [internal citations omitted]). Police and fire protection are examples of long-recognized governmental functions (see, e.g., Valdez v. City of New York, 18 NY3d 69, 75 [2011]).

"A municipal emergency response system—including the ambulance assistance rendered by first responders...—-should be viewed as a 'classic governmental, rather than proprietary function'" (Applewhite v. Accuhealth, Inc., 21 NY3d 420, 430; [internal citation omitted].

The City is not shielded from liability if a plaintiff is able to establish that a special duty was owed to the injured party. "A special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit the statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition" (Applewhite v. Accuhealth, Inc., 21 NY3d at 426).

Plaintiff's failure to allege or provide the factual predicate for a special relationship theory in the notice of claim or complaint is fatal to the maintenance of an action (Blackstock v. Board of Educ. Of the City of New York, 84 AD3d 524 [1st Dept. 2011]; [internal citations omitted]).



DISCUSSION

This case of first impression deals with whether the City's telemetry physician, Dr. [*8]Schneitzer,[FN7] was engaged in a governmental or a proprietary function on the morning of February 11, 2014. The Court finds under the specific facts of this case that Dr. Schneitzer, as a member of the City's emergency response team whose job it was to answer telephone calls at a remote office, in a pre-hospital setting, and to respond to questions posed by paramedics "whose range of approved emergency services is limited by law" (Applewhite v. Accuhealth, Inc., 21 NY3d at 429), was acting in a governmental capacity at the time plaintiff's claim arose.

Having found that the City is immune from liability because Dr. Schneitzer was performing a governmental function at the time of the injury, the next inquiry is whether the doctor "voluntarily assumed a 'special relationship' with the [decedent] beyond the duty that is owed to the public generally" (Applewhite v Accuhealth, Inc., 21 NY3d at 430) sufficient to create an exception to immunity. The answer to that question, which requires an analysis of each of the four elements set forth in Cuffy v. City of New York, 69 NY2d 255, 260 [1987]) (i.e., [1] whether the municipality, through promises or actions, assumed an affirmative duty to act on behalf of the injured party; [2] knowledge on the part of the municipality's agents that inaction could lead to harm; [3] some form of direct contact between the municipality's agents and the injured party, and [4] the party's justifiable reliance on the municipality's affirmative undertaking) is no. Dr. Schneitzer's particular role does not lend itself to a comprehensive analysis of the Cuffy elements. Unlike the EMTs in Applewhite, Dr. Schneitzer was miles away from the emergency and completely reliant upon the representations of the on-site paramedics. The doctor made no assurances that might lead decedent or plaintiff to justifiably rely on her conduct, which is "critical in establishing the existence of a 'special relationship'" (Cuffy v. City of New York, 69 NY2d 255 at 261).

Thus, while plaintiff has failed to plead or allege that a special relationship existed between Dr. Schneitzer and the decedent sufficient to expose the City to liability (see Blackstock v. Board of Educ. of City of New York, 84 AD3d 524 [1st Dept. 2011]; Rollins v. New York City Bd. of Educ., 68 AD3d 540 [1st Dept. 2009]), this Court finds that even if a special duty had been properly alleged, plaintiff is unable to raise a triable issue as to the applicability of the special duty doctrine (Applewhite v. Accuhealth, Inc., 21 NY3d at 423). Accordingly, the City is awarded judgment dismissing plaintiff's complaint in its entirety.

Turning to NYPH's motion for summary judgment, plaintiff did not address or specifically oppose those branches of the motion seeking dismissal of (1) the lack of informed consent cause of action; (2) the negligent hiring cause of action and (3) plaintiff's claims against NYPH for alleged medical malpractice and wrongful death during decedent's inpatient care and treatment. Accordingly, the third and fourth causes of action, together with all allegations of malpractice other than those associated with treatment rendered to decedent between 8:31 a.m. and 9:36 a.m. on February 11, 2014 are severed and dismissed.

The Court finds that defendant NYPH has established its entitlement to judgment as a matter of law by submitting the affirmation of Dr. Kwiatkowski, who opined that the paramedics [*9]made appropriate and timely decisions in treating decedent in the emergency setting. In opposition, plaintiff has successfully raised triable issues of fact sufficient to defeat summary judgment through, e.g., the telemetry call records and deposition testimony of the paramedics and John MacDonald as to the time that Versed was administered. While evidence of injury alone does not mean that defendant was negligent (see Landau v. Rappaport, 306 AD2d 446 [1st Dept. 2003]), the facts in this record together with plaintiff's three expert opinions outlining the paramedics' departures from good and accepted medical practice, call for a jury's analysis as to defendant's conduct and whether it was a proximate cause of decedent's alleged injuries and wrongful death.

Finally, under these facts the doctrine of res ipsa loquitor is unavailable to plaintiff (see Plaintiff's Complaint and Verified Bill of Particulars; NYSCEF Doc. Nos. 1, 44) as a matter of law (see Dermatossian v. New York City Transit Authority, 6 NY2d 219 [1986]).


Accordingly, it is

ORDERED that the Complaint is dismissed against the non-suable entities the New York City Fire Department, New York City Fire Department Bureau of Emergency Medical Services, New York City Fire Department EMS and New York City Emergency Medical Service System; and it is further

ORDERED that the caption of this matter shall be amended as follows:



SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK___________________________________________________X
LINDA U. ARTEMIOU, as Administratrix of the Estate of
PETER C. ARTEMIOU, deceased, and LINDA U. Index No: 805202/2015
ARTEMOIU, Individually,

Plaintiffs,

against-

THE CITY OF NEW YORK and NEW YORK AND
PRESBYTERIAN HOSPITAL,

Defendants.

___________________________________________________X;
and it is further

ORDERED that the motion to dismiss the complaint of the defendant, the City of New York, is granted and the complaint is severed and dismissed as against the City of New York; and it is further

ORDERED that the Clerk enter judgment severing and dismissing the complaint as against the City of New York; and it is further

ORDERED that the motion for summary judgment of the defendant, New York and Presbyterian Hospital, is granted to the extent that plaintiff's Third and Fourth causes of action together with all of plaintiff's claims other than those related to care and treatment between 8:31 a.m. and 9:36 a.m. on February 11, 2014, are severed and dismissed; and it is further

ORDERED that the Clerk enter judgment severing and dismissing plaintiff's Third and Fourth causes of action; and it is further

ORDERED that the balance of the motion for summary judgment by New York and [*10]Presbyterian Hospital is denied; and it is further

ORDERED that the parties appear for a pre-trial conference on July 13, 2022 at 12:00 p.m. via Microsoft Teams; and it is further

ORDERED that the Clerk of the Court enter judgment accordingly.

DATE 5/2/2022
JUDITH MCMAHON, J.S.C. Footnotes

Footnote 1:Non-party witnesses Gregory Micciche and John G. MacDonald (see, generally, NYSCEF Doc. Nos. 180, 181) described the decedent on the morning of the emergency as "foaming at the mouth," speaking incoherently and calling for his mother, standing up, falling down, flailing around the room and appearing "very agitated."

Footnote 2:An MRI of decedent's brain performed at NYPH uncovered "global anoxic brain injury" (see NYSCEF Doc. No. 167 at 106).

Footnote 3:To the extent relevant, plaintiff testified that her husband had no history of seizures, and no known medical conditions (see NYSCEF Doc. No. 87).

Footnote 4:The PCR was recorded by paramedic Kremenizer.

Footnote 5:The defense expert's discussion of the airway negates NYPH's argument, asserted in its reply, that it was unfairly surprised by plaintiff's claim that the paramedics failed to establish and maintain decedent's airway (see also Valenti v. Camins, 95 AD3d 519 [1st Dept. 2012]).

Footnote 6:Dr. Schneitzer, who was physically at an FDNY "online medical control" office in Maspeth, Queens when the paramedic's call was transferred to her, claims that she instructed the paramedics according to the information they provided her (i.e., their inability to get close enough to decedent to obtain his vital signs, inability to ascertain decedent's medical history, etc.) (see NYSCEF Doc. No. 178, pp. 19, 28, 61-62 101, 119).

Footnote 7:Several reported cases discuss the roles of EMTs, paramedics and 911 operators, but not the physicians working within the 911 response system. (see, e.g., Applewhite v. Accuhealth, Inc., 21 NY3d 420 [2013]; Laratro v. City of New York, 8 NY3d 79 [2006]; Xenias v. City of New York, 191 AD3d 453 [1st Dept. 2021]; Dixon v. City of New York, 120 AD3d 751 [2d Dept. 2014]).